Opinion
CV-18-01628-PHX-JGZ (JR)
08-10-2021
Danny Jacobs, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
Petitioner Danny Jacobs, incarcerated at the Arizona State Prison in St. Johns, Arizona, has filed a Petition for Writ of Habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents' Answer (Doc. 8). Petitioner did not file a reply. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Rateau for Report and Recommendation. The Magistrate Judge recommends the District Court, after its independent review of the record, deny Grounds Two and Three of the Petition.
Additional briefing and video deposition testimony related to Ground One are to be submitted to the Court by September 6, 2021, and that ground will be addressed by separate order after the Court has reviewed the parties' submissions. See Docs. 26, 34.
I. Factual and Procedural Background
A. Trial and Sentencing
On June 14, 2013, the State indicted Jacobs for kidnapping, a Class 2 felony, a domestic violence offense and a dangerous crime against children (Count 1); and assault, a Class 1 misdemeanor and domestic violence offense (Count 2). Ex. A, p. 1 (Indictment).
The Arizona Court of Appeals summarized the circumstances of the crimes as follows:
Early one morning in June 2013, Jacobs and his live-in girlfriend, S.W., got into an argument in their house. The argument quickly escalated into a physical fight, where Jacobs hit S.W. in the mouth. Although the fight continued, sometime later that morning, S.W. left the house, dropped her older daughter off at school and then called 9-1-1. Their two year-old daughter, D.W., remained in the house with Jacobs. When S.W. returned to the house accompanied by the police, Jacobs did not answer the door. When officers attempted to open the door, Jacobs held the lock and began to yell. Among other things, officers testified Jacobs yelled that if officers came into his house, they “were going to have to kill him in front of the child.” Jacobs remained in the house with D.W., while the officers attempted to get D.W. out of the house and gain access to the house for several hours. Eventually Jacobs was taken into custody and D.W. was liberated without injury.Ex. L, p. 2.
Before trial, the State offered Jacobs a plea agreement whereunder he would plead guilty to attempted kidnapping. Ex. R, Ex. 1 (Plea Agreement attached to State's Response to Petition for Post-Conviction Relief). Under the agreement, the State made “no agreements as to sentencing, ” but under the terms of the agreement, Jacobs would be eligible for probation, which would be supervised and begin after he “serve[d] an initial, non-deferred jail term of 1 year flat with no credit for time served.” Id.
A settlement conference was conducted by Maricopa County Superior Court Judge Bruce Cohen on February 26, 2014. With Jacobs in attendance, the prosecutor laid out her perspective of the facts and informed Jacobs that “even though [S.W.] would not want to testify against you, she would not be needed for the [kidnapping charge]” because
[t]he only thing the State would have to do is bring in a few officers to point out that they tried to gain entry into your home and that you refused to, you said you guys better get out of here, back away from my house, I'm going to kill myself, that you continued to yell, that you were saying that [D.W.] was going to stay with you and that police were going to have to kill you in front of her if they came into the house.Ex. B, pp. 6-8.
The prosecutor went on to explain that, while Jacobs' counsel, W. Michael Atkins,
Esq., had asked for a better deal, the offer was the result of consensus after meeting with other prosecutors and was consistent with offers made in comparable cases. Id. pp. 8-9. Jacobs then tried to explain what happened and repeatedly stated that he did not want a felony on his record. Id. at pp. 10-14. Attorney Atkins then asked the prosecutor about the potential penalties if Jacobs went to trial and was convicted. The prosecutor explained:
Because Arizona is guided by statute, if you are convicted after trial the minimum - the range of sentence is 10 to 27 years in prison, day for day. The judge has really no discretion, the very, very least he could give you is 10 years in the Department of Corrections.Id., p. 14. The prosecutor then stated that “[t]he plea is the best I can give you.” Id., pp. 14-15.
Atkins then asked the judge if he believed the case would be appropriate for a probation only sentence. Judge Cohen stated that he believed a probation only sentence with credit for time served would be appropriate, but that “[u]nder the plea agreement it provides, though, and I would not have any discretion on this[, ] [t]he State's offer at present is that you would have to serve one year in jail.” Id., p. 16. The judge then expressed his hope that the prosecutor would reconsider and offer the possibility of probation with credit for time served. Id., pp. 16-17. At the close of the conference, the prosecutor stated that she believed the year in jail was appropriate and “wanted to make clear” that the offer “would remain the same.” Id., p. 23. The judge then scheduled to meet with Jacobs and counsel the following day “and give Mr. Jacobs a chance to think this over.” Id. Before adjourning, Judge Cohen told Jacobs that “you're getting a better offer than most people who have had similar types of charges.” Id., p. 29. The judge's final words to Jacobs were:
Mr. Jacobs, tomorrow you will have to make a decision, even though there's not a good decision to be made. There are better and there are worse decisions, but none of them are great and I get that. But tomorrow you will have to make that decision.
If you decide not to take the plea, I will go over with you tomorrow what your sentencing possibilities could be. And I believe by law the minimum you can get would be 10 years. And, frankly, that would be really
a tragic result if you ended up with double digit prison time for this situation.
That doesn't make the offer easier to accept. I'm just telling you that that seems like a much worse result to me to expose yourself to that.Id., pp. 29-30; see also pp. 14, 16 (statements that minimum sentence without the plea agreement would be 10 years).
The trial judge, Maricopa County Superior Court Judge Teresa Sanders, commenced the April 23, 2014 trial setting conference by stating that:
The Kidnapping, if proven as charged at trial carries a minimum term of 10 years, a presumptive term of 17 years, a maximum term of 24 years, and that has to be served flat, day for day.
If convicted at trial of this offense as charged, the Defendant is not eligible for Probation, and prison would be mandatory.Ex. C, p. 4. Judge Sanders then asked the prosecutor about the offer and, after describing the previous offer, the prosecutor stated that, “today in talking to [Jacobs'] counsel he asked me to consider something else, and while I'm not - still not willing to consider giving him credit for the entire time, he did talk me into giving him credit for four months served” and would be required under the plea agreement to serve only eight months in jail. Ex. C, pp. 4-5. Judge Sanders then addressed Jacobs, stating:
Sir, obviously you have an opportunity to speak to your lawyer privately, but do you have any questions at this point that you want to ask either the Prosecutor or myself about either the pleas agreement, or the potential sentencing ranges if you were to go to trial and lose?Id., p. 6. Jacobs did not respond and the judge continued, explaining that if he went to trial and was found not guilty, Jacobs would “walk out the door.” But if he was convicted of kidnapping, the judge “couldn't give you less than ten years . . . .” Id., p. 6. Then, Judge Sanders asked Jacobs if he had “any questions you want to ask me or the Prosecutor?” Jacobs responded, “No, I do not.” The judge then asked Jacobs if he wanted to reject the plea offer and proceed to trial. Without speaking to his counsel or asking any questions of the judge or prosecutor, Jacobs responded, “Yes.” Id. With that, the judge proceeded to discuss the trial schedule with the attorneys. Id., p. 7.
On May 2, 2014, the jury found Jacobs guilty on both the kidnapping and assault charges. Ex. D (Verdict Forms). On July 1, 2014, the court sentenced Jacobs to ten years in prison for the kidnapping charge and to time served for the assault charge. Ex. E, p. 6 (Sentencing Transcript); Ex. F, p. 2 (Sentencing Order).
B. Direct Appeal
A timely notice of appeal was filed on July 1, 2014. Ex. G. In this direct appeal, Jacobs argued that (1) the trial court erred when it denied his motion for a directed verdict, and (2) the trial court erred when it denied giving his requested jury instruction regarding a definition of “human shield” under the kidnapping charge. Ex. H, pp. 12-16. After the State responded, in a Memorandum Decision filed on November 19, 2015, the Arizona Court of Appeals affirmed Jacobs' convictions and sentence. Ex. L, pp. 3-6.
C. Post-Conviction Relief
Jacobs filed a notice of post-conviction relief on December 21, 2015. Ex. M. After the superior court appointed counsel, Jacobs' counsel filed a notice of completion, finding “no basis in fact and /or law for post-conviction relief. Ex. N (Order Appointing Counsel); Ex. O (Notice of Completion). The trial court then ordered Jacobs, if he wished to do so, file a pro per PCR petition by July 28, 2016. Ex. P. In the subsequently filed petition, filed June 16, 2016, Jacobs alleged ineffective assistance of counsel in violation of the Sixth Amendment. Ex. Q. Jacobs claimed that he would have accepted the plea offer if his trial counsel had properly advised him. Id., pp. 3-9.
In response, the State asserted that Jacobs “knew precisely what his options were” and wanted a better offer. Ex. R., p. 7. Then, when presented a better offer, Jacobs rejected the offer “after refusing the opportunity to discuss the more lenient offer with his lawyer.” Id., pp. 7-8. The State also contended that Jacobs' argument was based on the faulty premise that the plea offer was more favorable than the ultimate result, noting that under the plea agreement he could have been sentenced to as many as 15 years in prison. Id., p. 8 and n. 8.
After reviewing the record, the petition, the response, and the reply, the superior court dismissed Jacobs' PCR proceeding, finding that he had “failed to state a colorable claim which would entitle him to relief pursuant to Rule 32, and that no purpose would be served by further proceedings.” Ex. T.
Jacobs filed a petition for review, arguing that the trial court “abused its discretion by summarily dismissing the colorable claims without providing an evidence [sic] hearing and without making findings.” Ex. U.Specifically, Jacobs asserted that he “was inclined to take the plea offer, but was disabused of this decision by counsel, who advised Jacobs there was insufficient evidence to convict him.” Id., p. 3. On December 12, 2017, the Arizona Court of Appeals filed its Memorandum Decision granting review but denying relief, finding that the trial court had not abused its discretion. Ex. V.
Jacobs then filed a petition for review by the Arizona Supreme Court, which denied review. Exs. W, X.
D. Habeas Petition
On May 23, 2018, Jacobs timely filed his petition for habeas corpus, raising three grounds for relief. Doc. 1. In Ground One of the petition, Jacobs alleges trial counsel was ineffective in violation of the Sixth Amendment. As noted above, Ground One will be addressed separately by the Court. In Ground Two, Jacobs alleges that the trial court violated the Fifth Amendment when it denied his motion for a directed verdict. In Ground Three, he alleges that the trial court violated the Fifth Amendment when it declined to give his requested jury instruction clarifying the definition of a “human shield” in relation to the kidnapping charge.
II. Discussion
Respondents contend that Grounds Two and Three are unexhausted and procedurally defaulted. The Court agrees.
A. Exhaustion and Procedural Default
1. Legal Standards
A state prisoner must exhaust his available state remedies before a federal court may
consider the merits of his habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A); Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir. 1999). “[A] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations omitted).
Exhaustion requires that a habeas petitioner present the substance of his claims to the state courts in order to give them a “fair opportunity to act” upon these claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). “To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32, ” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994), and then present his claims to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).
Additionally, a state prisoner must not only present the claims to the proper court, but must also present them fairly. A claim has been “fairly presented” if the petitioner has described the operative facts and federal legal theories on which the claim is based. Picard v. Connor, 404 U.S. 270, 277-78 (1971); Rice v. Wood, 44 F.3d 1396, 1403 (9th Cir. 1995). “Our rule is that a state prisoner has not ‘fairly presented' (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th Cir. 2001). A petitioner must alert the state court to the specific federal constitutional guaranty upon which his claims are based, Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001), however, general appeals in state court to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish fair presentation of a federal constitutional claim, Lyons, 232 F.3d at 669. Moreover, it is not enough that a petitioner presented to the state court all the facts necessary to support an inadequately identified federal claim or that a “somewhat similar” state law claim was raised. Baldwin v. Reese, 541 U.S. 27, 28 (2004); Shumway v. Payne, 223 F.3d 982, 988 (9th Cir. 2000) (mere similarity between a claim of state and federal error insufficient to establish exhaustion). “Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.” Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005).
In Arizona, claims not previously presented to the state courts on either direct appeal or collateral review are generally barred from federal review because any attempt to return to state court to present them would be futile unless the claims fit into a narrow range of exceptions. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on direct appeal or in prior post-conviction relief petitions), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court's decision). Because these rules have been found to be consistently and regularly followed, and because they are independent of federal law, either their specific application to a claim by an Arizona court, or their operation to preclude a return to state court to exhaust a claim, will procedurally bar subsequent review of the merits of such a claim by a federal habeas court. Stewart v. Smith, 536 U.S. 856, 860 (2002); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (Rule 32, Ariz.R.Crim.P. is strictly followed); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in postconviction proceedings).
On August 29, 2019, the Arizona Supreme Court adopted new rules for post-conviction relief. The new rules apply in all actions filed on or after January 1, 2020 and, with exceptions, to all actions pending on that date. Because this case was final in state court before January 1, 2020, the new rules do not apply and the version of rules in effect at the time of Jacobs' conviction are cited herein. See Applicability Provision of Ariz.R.Crim.P. 32.1.
2. Application to Grounds Two and Three
In Ground Two and Ground Three, Jacobs contends his Fifth Amendment rights were violated through the trial court's refusal to grant his motion for a directed verdict and to provide the jury with a definition of “human shield” in relation to the kidnapping charge. Doc. 1, pp. 64-66. In his direct appeal, Jacobs did raise the factual bases for both of these claims. In fact, they are the only two claims he made on direct appeal. See Ex. H. However, as Respondents contend, the claims presented to the Arizona Court of Appeals were based entirely on state law. See Ex. H, pp. 12-16. He failed to cite the Fifth Amendment or any other federal authority in the petition. See Id. Thus, he failed to “fairly present” these claims by alerting the court of the specific constitutional guaranty upon which they are based and by describing the federal legal theories. See, e.g, Picard, 404 U.S. at 277-78; Castillo, 399 F.3d at 1003; Lyons, 232 F.3d at 668.
If Jacobs were to now return to state court to attempt to litigate the federal grounds for these claims, they would be found to be waived and untimely under Rules 32.2(a)(3) and 32.4(a)(2) of the Arizona Rules of Criminal Procedure because they do not fall within an exception to preclusion. See Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Grounds Two and Three are therefore technically exhausted but procedurally defaulted.
3. Cause and Prejudice
A federal court may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate cause for his noncompliance and actual prejudice, or establish that a miscarriage of justice would result from the lack of review. See Schlup v. Delo, 513 U.S. 298, 321 (1995). To establish cause, a petitioner must point to some objective factor external to the defense impeded his efforts to comply with the state's procedural rules. Dretke v. Haley, 541 U.S. 386, 393-94 (2004). “[C]ause is an external impediment such as government interference or reasonable unavailability of a claims factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations omitted). Ignorance of the state's procedural rules or lack of legal training do not constitute legally cognizable “cause” for a petitioner's failure to fairly present a claim. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908-10 (9th Cir. 1986); Schneider v. McDaniel, 674 F.3d 1144, 1153 (9th Cir. 2012). “Prejudice” is actual harm resulting from the constitutional violation or error. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984); Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1996).
Alternatively, a federal court may review the merits of a procedurally defaulted claim where a petitioner can establish that a “fundamental miscarriage of justice” would otherwise result. Schlup, 513 U.S. at 327. A fundamental miscarriage of justice exists when a constitutional violation resulted in the conviction of one who is actually innocent. Id.
Jacobs did not file a reply and alleges no cause or prejudice in the Petition. Likewise, he does not argue actual innocence. He has therefore failed to establish cause or prejudice that would enable the Court to address the merits of Grounds Two and Three. Accordingly, the Court recommends that those claims be dismissed with prejudice.
III. Certificate of Appealability
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules governing § 2254 Proceedings. A COA should issue as to those claims on which a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard is satisfied if “jurists of reason could disagree with the district court's resolution of [the] constitutional claims” or “conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
A certificate of appealability should be denied because Jacobs has not established any basis to excuse the default of Grounds Two and Three. As to these claims, there are no close questions and there is no basis to encourage further proceedings.
IV.Recommendation
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, dismiss Grounds Two and Three of Jacobs' Petition for Writ of Habeas Corpus (Doc. 1).
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Replies shall not be filed without first obtaining leave to do so from the District Court. If any objections are filed, this action should be designated case number: CV 18-1628-PHX-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).